YouTube Bans Video Essayist; Apparently Commentary No Longer Considered Fair Use

from the sigh dept

On Wednesday, at the Congressional Internet Caucus’ State of the Net 2009 conference, during the panel on digital copyright, NBC Universal’s Alec French made the case for technology-based filters on various websites, claiming that the filtering technology is so incredibly good these days that it can even understand fair use, and not block it. That seemed like quite a claim, and one at odds with pretty much everything we’ve seen. Of course, it may be in how he (and the entertainment industry) defines fair use. The example he gave was a Saturday Night Live video that was stitched together from clips from various newscasts, rather than the original SNL video. French pointed out that the software could tell the difference, and such a clip would be allowed to stay up.

Unfortunately, things don’t always work that way in reality. Michael Geist points out that YouTube has banned a video essayist, claiming that his commentary videos, which included clips from various movies, had to be taken down due to copyright violations — and since it happened three times (yay, three strikes), his entire account was banned. So, here’s a case where it seems that since the clips were used for commentary — which is a clearly accepted fair use — and, yet not only were the videos taken down, the guy’s entire account was banned.

Geist points out that this isn’t YouTube’s fault, since it’s just obeying the DMCA. But he does fault the DMCA for creating such a chilling effect on commentary and creativity. But there’s a larger point too. French insists that computers can somehow tell what’s fair use and what isn’t — at a time when humans still argue about it pretty much every day. I’m sure there will be some copyright system supporters who speak up in the comments (as they often do) that we’re crazy to think such videos were fair use. Given that, how can anyone actually believe that a technology system can accurately determine in any automated way what is and what is not fair use?

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Comments on “YouTube Bans Video Essayist; Apparently Commentary No Longer Considered Fair Use”

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Anonymous Poster says:

The DMCA is the single worst law that has ever been passed in this country, and it should be abolished immediately and replaced with something a little more reasonable. Something that, I don’t know, treats regular people like criminals for something that would normally be allowable under all other laws and common sense.

Mike (profile) says:

Re: Woah, slow down.

While we could debate this at ends, he’s only a few years working at NBCU, and has vast experience working in the House.

Huh? What does that have to do with anything?

I hope you left him with a good impression.

We had a nice chat, actually.

Mike, your Scottish.

Huh? Since when?

Perhaps you come off a little rough?

I don’t think so. I had a nice chat with him that was quite friendly.

John Hancock says:

I've been thinking ...

DMCA, Copyright, Trademark, and Patent abuses, Children arrested for taking pictures of themselves, abolition of free speech, corrupt politicians … These are just a few things mentioned on this site that are unacceptable. But what are the prospects of these being corrented by our government? Not a chance in hell. It keeps reminding me of what a number of men a long time ago signed …

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

I like the US and our system of government is pretty good if I say so myself. But wiping the law books clean at all levels of government and starting fresh would be a good thing if we could put people with fresh ideas, respect for their fellow americans, and the intelligence to see consequences of their actions beyond the immediate repercussions.

Anonymous Coward says:

It’s interesting that he thinks computers are capable of this kind of filtering. I’ve never heard of a program or algorithm that can do something that humans can’t define. It only works the other way around.

Of course his definition of fair use is, I’m sure, that if your video/audio file/stream contains *any* of their content, it violates fair use. In that case, it’s probably pretty easy (comparatively) to filter out. Just ban it all.

Anonymous Coward says:

“Of course his definition of fair use is, I’m sure, that if your video/audio file/stream contains *any* of their content, it violates fair use. In that case, it’s probably pretty easy (comparatively) to filter out. Just ban it all.”

This was almost correct. Corrected version follows.

“Of course his definition of fair use is ‘if your video/audio file/stream contains *any* content, it violates fair use’. In that case, it’s probably pretty easy (comparatively) to filter out. Just ban it all.”

bubba says:

So what?

People need to remember the Youtube is a friggin independant company. They can do what ever they want with your stupid videos. If they want to take something down it’s perfectly in their right to do so. Don’t like it? Put your crap video somewhere else. Or better yet, go read a book or go outside or something…

Anonymous Coward says:

Re: Let's get the culprit's name correct...

Once the (Liberal with a capital ‘L’) Google overlords manage to completely take over the internet, you will see more “political correctness” than you could ever imagine.

Oh yeah, because Edwin Meese, Kevin Martin or any others in the neocon bunch would never want to restrict free speech in any way whatsoever. In fact, the show “Polticaly Incorrect” with Bill Maher was their favorite show until those stinkin’ libs forced it off the air.

Ben Smith says:

Re: Re: Let's get the culprit's name correct...

Hey now… why the hate on Texas? Not all of us fit the stereotype you’re applying there… Just because TX CHL Instructor is a moron doesn’t mean that all Texans, or all CHL holders are too.

Lots of us “texas fucks” think his opinion is ignorant and uninformed, but your response is equally ignorant and uninformed.

Anonymous Coward says:

Why not incorporate?

Why doesn’t anyone incorporate? Any attorneys know why this might not work? -Sue RIAA and MPAA for Tortious interference of their business practice. If you can prove any of these videos spawn any amount of money or further the career of the individual, I don’t see why this could not be done since these are legally protected videos. The DCMA must be fought back through other legal means and penalties for the violation of other laws can be those means. There are other laws out there that might counter act this practice, I’m not sure why they could not be used….

alec french says:

Better late than never....


It was nice to finally meet you last Wednesday. I hope your trip to Europe is going well.

Just wanted to respond to a few issues in this post about my comments at the State of the Net conference. I will also respond to other issues in your 1/16 post in a comment there.

(1)I don’t believe that, in my comments at the conference, I insisted that computers can tell what is fair use. I was making a larger point about how the implementation of fingerprinting/filtering technologies by UGC sites demonstrates they can be deployed without impacting fair use. Thus, my point goes to both the vastly improved nature of the technology and the implementation of that technology.

As to the nature of the technology, my point was that the fingerprinting technologies employed by UGC sites (YouTube, Daily Motion, Soapbox, MySpace, etc.) and network operators (universities, corporations, etc.) are now sufficiently refined to 100% correctly distinguish copyrighted works from other works. So, there is no longer a problem with misidentifying the “Harry Potter Book Report” as a Harry Potter movie, which for years was the example cited by many CopyWrongers as to why copyright-monitoring technologies didn’t work.

As to distinguishing between copyright infringement and fair use when deploying fingerprinting filters, there is no question that, generally, the distinction has to be made through application of rules developed by the UGC sites or network operators. In other words, once a file is identified as containing copyrighted material, rules govern what happens to such a file. Is it allowed to be transmitted/uploaded because the file contains less than 3 minutes of a movie, even though there is no unprotected material? Is it allowed to be transmitted/uploaded even though it contains more than 10 minutes of protected material because it also contains significant portions of unprotected material? Is it the complete episode of the TV show, with no unprotected material?

Based on the experience so far, I think the rules currently used on UGC sites have been a phenomenal success in preventing the uploading of infringing material without impacting potentially non-infringing material. I pointed out the continued availability of the SNL election clip mashup as one example of such success.

The example that Michael Geist pointed out (wrongful removal of video essayist commentary) appears to have nothing to do with the upload filtering technology employed by YouTube and the associated rules (after all, the material was successfully uploaded several times.) Rather, that material was apparently taken down pursuant to post facto “notice and takedown” demands by a copyright holder. I don’t know whether the posted material did, in fact, constitute an infringement or a fair use (the addition of some commentary does not, ipso facto, make copying/distribution of copyrighted material a fair use). However, I would note that there are remedies for wrongful takedowns (suits against copyright holders for wrongful takedowns and counternotifications to UGC sites or network operators). Did the allegedly aggrived party utilize either of these remedies? (I know many will respond that such remedies are insufficient if there is any possibility that a single person’s speech would be wrongfully taken down. In prophylactic response, I’d say that only the government can violate free speech rights, not private parties, so a voluntary system that successfully prevents millions/billions of copyright infringements while only very rarely stopping transmitting/uploading of non-infringing material seems like a good system.)

(2) I will take your bait and answer the question you pose at the end of the 1/15 post: “how can anyone actually believe that a technology system can accurately determine in any automated way what is and what is not fair use”?

Though I didn’t assert it at the conference, I will now assert that, in some cases, computers CAN with 100% accuracy distinguish between copyright infringement and fair use. For instance, it is a fact that filtering technology CAN identify a file being transmitted through the Internet or posted to a UGC site as an exact, complete copy of our movie Milk with NO additional material included. I would contend that, since Milk is currently in theatrical release and has not been distributed by us in any other format, a computer can be 100% certain that it is, at this time, a copyright infringement to transmit/upload a file containing an exact, complete copy of the movie Milk, and thus can stop the transmission/uploading of that file with NO consequences for fair use.

Would you, and your readers, agree that there is 100% certainty that the transmission/uploading of Milk in this case constitutes copyright infringement? If so, would you and they agree that – in this case – it would be entirely appropriate to implement filtering technology to stop the transmission/uploading of the identified file?

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